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Monday, December 29, 2003

Column: Total Recall

Californians recall Gray Davis – but not fondly.

That was just one of the many jokes inspired by California’s tumultuous recall election. The joke gets its punch from the fact that recall has more than one meaning. In addition to its political sense, it is also a synonym for remembering.

That double meaning also allowed Arnold Schwarzenegger to coin a piquant pun by mounting a Total Recall campaign. As it happens, Arnold proved to be quite a punster, also vowing to “terminate” Gray Davis. A joke, no doubt.

The word recall dates from the late 16th Century. Like many words of that vintage, it was made by combining an old Anglo-Saxon word (call), with a fashionable Latin prefix (re). Shakespeare provides the first recorded use of recall and, as luck would have it, he did so in a legal context. In the Comedy of Errors, a character explains the difficulty of having a death sentence commuted by pointing out that a “Passed sentence may not be recall’d.”

From the very beginning, then, the word recall had the sense of revoking, or undoing, something that had already been done. Or, as the poet John Dryden wrote in the 17th Century, “’Tis done and since ‘tis done ‘tis past recall.”

It turns out, however, that almost nothing is “past recall” – cars, tires, computers, and, of course, politicians. The political use of recall was firmly established by the time the Articles of Confederation appeared in 1777. Under the Articles, each state legislature was empowered to select its delegates to the national Congress, and “to recall its delegates, or any of them, at any time within the year.”

The concept of the recall, however, goes back even farther – at least to the 1691 General Charter of the Massachusetts Bay Company, which provides that any of the 28 “Councillors or Assistants” may be “removed” by the General Court or Assembly of the colony.

During the Constitutional Convention of 1787, Edmund Randolph of Virginia proposed a measure that would have allowed for the recall of members of the House of Representatives. The measure, however, was defeated which is why, no matter what you think of your congressman, you have to wait for the next election, or his indictment, whichever comes first.

Following its defeat at the Constitutional Convention, the recall went into hibernation for about a hundred years, reemerging in the platform of various populist political parties in the late 19th Century. Lawyer and historian Joshua Spivak reports that in the 1890’s the Populist Party and the Socialist Labor Party advocated the “Imperative Mandate,” a fancy term for a recall.

The recall is closely related to two other late 19th Century reform measures that had a profound effect on the U.S., particularly the Western States. They are the initiative (proposing new laws for the voters to accept or reject) and the popular referendum (submitting an existing law to voter approval). These measures, first adopted in South Dakota in 1898, are now in force in 24 states, including California, where initiatives are known as propositions.

Ballot initiatives, in turn, have been responsible for all sorts of reforms, not least of which (according to the website of the Initiative and Referendum Institute) is permitting the sale of yellow margarine – a move that had been blocked in the legislatures by dairy interests. Butter producers, not surprisingly, preferred that the non-dairy competitor be sold in its original color (an unappetizing pale white). The last state to allow the sale of colored margarine was Wisconsin, in 1967.

The first modern recall law was passed in Los Angeles in 1903, and by 1911 the law was passed statewide for California. Seventeen other states and the District of Columbia eventually followed suit with their own recall measures. Even tiny Guam has the right to recall its elected officials (both of them!).

And the recall has been a successful export – the Venezuelan Constitution of 1999 includes a recall provision. And now the Venezuelan opposition parties are trying to recall the president, Hugo Chavez.

In practice, however, the recall has been more often threatened than carried out. Until the recall of Gray Davis, the only successful recall of a governor took place in 1921, when angry North Dakota voters threw Governor Lynn Frazier out of office. But the voters evidently took pity on Frazier and elected him to the Senate just a few years later. Take heart, Gray Davis!

* * *

It’s one thing to knock a governor, or even a president, off his pedestal, but now P. Diddy is under attack. Nothing, it seems, is sacred.

Kirk Burrowes, a former business partner of Diddy (aka Sean Combs), has brought a $25 million racketeering suit against the rap mogul, alleging that Diddy and his associates used “acts and threats involving murder, mayhem, and extortion.”

Murder and extortion, okay, but mayhem? Most people think of mayhem as a general term for disorder (“it was mayhem at Filene’s!”). In fact, mayhem has for centuries been a technical pleading term, meaning to injure another violently so as to weaken his ability to defend himself.

Mayhem is a medieval term (and, frankly, a medieval practice), coming from the Anglo-Norman maihem, or injury, from which we also get maim. In old pleadings, the two words are always used together. Thus, as recently as the mid-19th Century, in order to make out an indictment for mayhem, one was strictly required to state that the defendant “feloniously did maim” the victim.

Although one might think that any injury would weaken one’s self defense, that’s not the way the law sees it. The venerable Blackstone writes that, at common law, the cutting off of the ear or the nose is not held to be a mayhem, suggesting, perhaps that those appendages were considered expendable in the good old days.

* * *

Closer to home, newspapers report that Clarence Norman, state assemblyman and chairman of the Brooklyn Democratic Party has been arrested on two counts of larceny. Whatever the merits of that charge, at the very least it gives us an excuse to look at a splendid word, larceny.

Larceny, like mayhem, is an old Anglo-Norman term, coming from the Latin latrocinium, or theft. Traditionally, larceny referred to the taking away of another’s property – as distinct from other forms of theft, such as withholding another’s property. Under current New York law, larceny covers most varieties of theft, except robbery, which is a “forcible stealing.”

The first English law dealing with larceny was the Carte Forestae of 1225, which imposed fine or imprisonment for stealing the king’s deer. The next statute came fifty years later and was also, bizarrely, limited to the theft of deer. At some point, British lawmakers conceded that there may be other forms of property worth protecting, and the law of larceny became increasingly complex.

Medieval lawmakers also created the distinction between grand larceny and petit larceny. The latter applied when the value of the goods stolen was less than 12 pence; when the value was greater, it was grand larceny and the penalty was death.

That was all well and good in the 14th Century, but, what with inflation and all, execution for stealing 13 pence began to look a little harsh in the early 19th Century. One wit gleefully observed at the time that, while everything else gets more expensive, a man’s life keeps getting cheaper. The 12 pence limit was finally repealed by Parliament in 1827.

Clarence Norman, of course, does not face the death penalty. As an assemblyman; however, he might face the wrath of voters. But that will have to wait until the next election, because New York, unlike California, does not have a recall law.

(This column originally appeared in the December 2003 issue of New York Law Journal Magazine).

Wednesday, October 29, 2003

Column: When the law gets naked

On July 24, 2003, the Federal Trade Commission affirmed the holding of an administrative law judge that music giants PolyGram and Warner had entered into a “naked agreement to fix prices and restrict output” of recordings by the “Three Tenors” (emphasis added).

To the casual observer, the FTC’s use of the word “naked” to describe an agreement might seem like an odd rhetorical flourish. How can one tell if a contract is naked or clothed?

Granted, the word “naked” has been used metaphorically in legal writing for over a century: the word gets its own entry, for example, in Bouvier’s 1856 Legal Dictionary. The normal meaning of the word, however, is “undisguised” or “unembellished” – much like the pejorative use of bare (as in, “a bare allegation”). But that makes little sense in the context of the FTC’s findings – surely the Commission was not suggesting that an agreement to fix prices would be better if it were disguised.

No, the use of the word “naked” in antitrust law is slightly more complicated, as we will see. But first, a little background. In the Three Tenors case, PolyGram and Warner entered into a joint venture to distribute a 1998 recording by those vocal giants Jose Carreras, Placido Domingo, and Luciano Pavarotti. The joint venture itself was uncontroversial, but the FTC objected to an alleged side agreement whereby PolyGram and Warner agreed to refrain from promoting other recordings by the Three Tenors.

By referring to the side agreement as “naked,” the FTC was using a shorthand reference to a long line of authority that distinguishes between “naked” restraints of trade, which are bad, and “ancillary” restraints, which are good, or at least tolerable. If business rivals agree to set prices, allocate customers, or divide sales territories between themselves, then that’s a naked restraint. But if the rivals agree on restrictions that are “ancillary” to a legitimate transaction, then it’s probably okay. An example of an ancillary restraint might be a non-competition agreement that is part of a sale of a business.

Where does this use of the word “naked” come from? The distinction between naked and ancillary restraints is invariably attributed to the landmark 1898 opinion of Judge (later Chief Justice) William Howard Taft in United States v. Addyston Pipe & Steel Co. The only problem with this attribution is that Taft himself, while using the term “ancillary,” never actually uses the word “naked.” Nor does “naked” appear in the Supreme Court opinion affirming Taft’s decision.

A search of Supreme Court antitrust cases turns up no “naked” references until the 1963 decision in White Motor Co. v. United States in which Justice Douglas states: “Horizontal territorial limitations . . . are naked restraints of trade with no purpose except stifling competition.” And there the trail goes cold because Douglas gives no citation for his use of “naked.”

Historically, the most likely origin of “naked agreement” is the Latin nudum pactum, literally, a “nude contract.” A nude contract is one that is not supported by (or “clothed with”) consideration. This derivation makes sense, because an ancillary agreement would be “clothed” with whatever consideration supports the main transaction, whereas a naked agreement would stand on its own with no consideration, save the desire of the parties to stifle competition.

The concept of a nude contract in English law goes back at least as far as the eighteenth century, when Blackstone wrote – and I quote – “[a] confideration of fome fort or other is fo abfolutely neceffary to the forming of contract that a nudum pactum . . . if totally void in law.” To which we might add, it certainly if.

So much for naked. Its companion term, “ancillary,” by the way, also comes to us by way of a long-standing metaphor. In Latin, ancilla refers to a young female house servant; hence, the word was anglicized to mean something that is subordinate or accessory.

* * *

So: if the Three Tenors have gotten themselves into antitrust trouble, the obvious follow-up question is: what kind of legal problems do sopranos face?
Plenty, it turns out. The New York Post reports that Sopranos cast member Richard Maldone was recently charged with selling the drug kentamine out of his Long Island home.

Maldone, who plays the mobster Albert Barese on the HBO show, was facing prosecution by Queens District Attorney Richard Brown for alleged drug trafficking. The charges, however, have now been dropped since the Queens Supreme Court has determined that Brown lacks jurisdiction over the case, which arises from facts that allegedly occurred in Nassau County.

Jurisdiction is one of those key legal words that people take for granted. Roughly, it is synonymous with “power,” i.e., the power of a court to hear a particular kind of case, or the power of a government official to make or enforce laws on a given subject matter, or within a certain territory. The word comes directly from the Latin iuris dictio, meaning literally “speaking of the law.” In the ancient world, the law was a matter of pronouncements and proclamations – an official had authority if he had the power to “speak the law” within a particular area.

Jurisdiction is sometimes of the subject-matter variety, as in the Federal system, where a case must fit within certain categories to be heard by a Federal judge. But there is also the territorial sense of jurisdiction, which is what foiled the efforts of the Queens D.A. to prosecute the Maldone for something he allegedly did in Nassau County.

The prosecutorial power of New York State is generally divided along territorial lines, county by county, which is meant to prevent situations where two District Attorneys end up fighting over the right to prosecute a particular case. And come to think of it, isn’t that a naked restraint on competition?

* * *

To keep with the musical theme, hip-hop impresario Russell Simmons was recently slapped with a subpoena by New York Attorney General Elliot Spitzer. Spitzer wants to know about Simmons’ efforts to persuade state lawmakers to reform certain drug laws.

Simmons – the founder of Def Jam records and mentor to such artists as Funk Master Flux and LL Cool J – says that he was simply exercising his constitutional right to petition the government. Spitzer, evidently, takes a different view. He is concerned that Simmons, along with former NAACP leader Benjamin Chavez, failed to register as lobbyists, a requirement for certain people who seek to influence state lawmakers.

Which brings us to the question: why are political pressure groups called “lobbyists?”

An oft-cited etymology for the word is that it comes from the lobby of the Willard Hotel in Washington, D.C. According to lore, President Ulysses S. Grant would stroll from the White House, across Lafayette Park to the Willard, where he would sit in the lobby, entertaining various favor-seekers.

In fact, the word is much older than the Grant administration (1869-77). Americans began referring to “lobbyists” around 1808, referring to the habit of petitioners to wait in the “lobby” outside of Congress in the hopes of collaring legislators and persuading them as to the merits of various causes.

The use of the word “lobby” to refer to a legislative antechamber is older still. During the 17th Century, when the British Parliament used to meet in St. Stephens chapel, people started referring to the antechamber of the chapel – where legislators could mingle with the public – as the “lobby” (the word comes from the Latin lobia, meaning a “covered walk.”) To this day, the reception and meeting area behind the U.S. House chamber is referred to as the “Speaker’s Lobby.”

Experts say it is a highly technical question as to when a person crosses the line from citizen to “lobbyist.” But really: lobbyists are cigar-chomping hacks in cheap suits. Does anybody think that Funk Master Flex would be caught dead with somebody like that?

(This column originally appeared in the October 2003 issue of New York Law Journal Magazine).

Monday, September 29, 2003

Column: Name That Law

If you’ve ever tried to buy a bottle of wine on a Sunday, then you know that New Yorkers suffer under the yoke of a Blue Law, that is, a law prohibiting certain types of retail activity on the seventh day.

You may call such laws many names – inconvenient, archaic, and obsolete come to mind – but what on earth is blue about them?

In fact, so many of our laws have funny names, one could spend all day pondering their origins (trust me). No sooner have we got past Blue Laws than we come across Blue Sky Laws, a seemingly nonsensical name for state securities laws. Beyond that, we have Antitrust laws to protect competition, Lemon Laws to protect consumers and Megan’s Law to protect children.

Blue, Blue Law

But to get back to wine, why should the ancient Puritan laws protecting the Christian Sabbath be called “blue?”

A popular theory has it that Blue Laws got their name from the blue paper on which they were originally printed. This has all the advantages of a good theory: it’s brief, tidy, and sensible. The only problem is that there is absolutely no evidence that such laws were ever printed on blue paper.

More likely, the term Blue Law derives from the 18th century slang term “blue,” referring to strict moral codes and those who observed them (hence the colloquial “bluenose” for a puritanical person). The Reverend Samuel Peters was the first to speak of “blue laws” in his 1781 book, General History of Connecticut. Peters does not attribute the phrase, and it seems most likely that he coined it himself.

Blue is also the color of the Blue Sky Laws, which sound like an overly optimistic meteorological regulation (and while we’re at it, can we have a “Sunny Weekend Law?”). Blue Sky Laws, of course, are the securities laws and regulations of the individual states. The term was made popular by the Supreme Court case of Hall v. Geiger-Jones Co. in which Justice McKenna described such laws as targeting “speculative schemes which have no more basis than so many feet of ‘blue sky.’” Although Justice McKenna claimed that he was borrowing the phrase from an earlier case, he did not provide a citation, and so, ends up getting the credit for the term.

Strange Names

American history is full of strange-sounding laws. There were the infamous Jim Crow laws passed by Southern legislatures after the Civil War. These segregation measures took their name from a recurring character in early 19th Century “minstrel shows,” in which white actors would apply black cork to their faces and perform song-and-dance routines.

At the same time that the Jim Crow laws were being enacted in the South, the Midwestern legislatures were passing railroad regulations known as the Granger Laws. These laws did not get their name, as one might expect, from a Mr. Granger, but rather from “the Grangers,” a farming organization that was once one of the most powerful lobbies in American politics.

Even the thoroughly modern subject of Antitrust law has a quaint name, when you think about it. Antitrust – which in other countries goes by the more straightforward term “Competition Law” – takes its name from the late 19th century suspicion of conglomerates known as “trusts,” a form of business organization that was long ago superseded by holding companies and other devices.

When Congress Gets Into The Act

Where do laws get their names? Usually from Congress, or the state legislatures, as the case may be.

In Washington, a new law passed by Congress is given a session number, beginning with “P.L.” or “Public Law.” A law called “P.L. 102-89,” for example, would be the 89th law passed by the 102nd session of Congress. The session laws are then codified to fit into the existing scheme of federal laws, and will be included in the United States Code. The Code provides the name for laws that are most familiar to lawyers, such as 11 U.S.C. § 540.

As much as lawyers love the precision of Code sections, politicians don’t (somehow “Reelect Smith, co-sponsor of 27 U.S.C. § 8471” just doesn’t sound right). Thus, every law also has a popular name so that Congress can sell it to the public.

Having said that, a quick glance at the Popular Name Table of the U.S. Code shows that Congress has a distinctly tin ear when it comes to naming statutes. The Healthy Meals for Healthy Americans Act, for example, sounds like a scheme to withhold food from sick people. Meanwhile, a law to regulate tobacco – crying out for something snappy like “the Clean Lungs Act” – is given the dreary title of Tobacco Control Act. In the hands of our representatives, cars, trucks, and trains become Surface Transportation (yawn!).

A number of supposedly “popular” names have a mind-boggling specificity. For example, the Adjustment to Lawful Resident Status of Certain Nationals of Countries for Which Extended Voluntary Departure Has Been Made Available Act appears to have been written for one guy. And to the non-lawyer, the Uniform Simultaneous Death Act has the ring of something that lawmakers dreamed up one Friday afternoon as a practical joke.

State legislators often do a better job than congressmen with popular names. What could be better for protecting consumers against shoddy cars than a lemon law? All 50 states have lemon laws, it’s a catchy name, and easy to figure out. A more difficult question is how the word “lemon” came to represent defective goods in the first place. One theory has it that lemons were frequently left rotting in markets; another that in slot machines, three lemons in a row yields no money; a third, simply, that lemons are sour.

Often, lawmakers will take the easy way out by giving a law a name that people just can’t disagree with, say “the Consolidated Motherhood and Apple Pie Act.” Names like that abound: the Animal Welfare Act, the Economic Recovery Act, and the Child Protection Act, to name a few. Who could be against those things?

But then, standards do change and some names that might have been successful at an earlier time sound like real clunkers today. It is rather arresting to go through the statute book and see names whose popular appeal are lost on today’s reader. When, for example, was the Anti-Beer Act a vote getter? The Atomic Weapons Rewards Act of 1955 has a certain Cold War charm that is difficult to conjure up now (although one wonders what the rewards were).

Criminals and Victims

Another method for labeling a statute – and one that is currently in vogue – is to name it after a victim of the crime to be prevented by the law. Take “Megan’s Law,” a state statute that requires a public notice whenever a convicted sex offender moves into a neighborhood. The law is named for Megan Kanka, a girl who was murdered at age seven by a convicted sex offender. In New York, we have Christopher’s Law, Jenna’s Law, Elisa’s Law, and Lee-Anne’s Law, and probably more. At the federal level, the Brady Handgun Violence Prevention Act is named for James Brady, the White House Press Secretary left paralyzed by an assassin’s bullet.

You wouldn’t think that lawmakers would commemorate the perpetrator of a crime, but there is at least one example: the Son of Sam law, which requires that convicted criminals give all money earned from book, movie or other deals to their victims or the state. The first such law was passed in New York in response to serial killer David Berkowitz (aka “Son of Sam”), who sought to sell his story. Since then, the legislatures of some 40 states have enacted similar laws. Ultimately, however, all that work was for naught, since the Supreme Court later struck down the Son of Sam law on First Amendment grounds, which just goes to show that anything that can go wrong will go wrong – otherwise known as Murphy’s Law.

(This column first appeared in the September 2003 issue of New York Law Journal Magazine)

Sunday, June 29, 2003

Column: Who is John Doe

John Doe has all luck. Every time you read about some sexy, cutting-edge legal issue, John Doe has his name all over it. He’s as bad as that Miranda guy.

Just last March, when the Pennsylvania Supreme Court heard arguments in a ground-breaking CyberSLAPP lawsuit, Doe was right there in the name of the case: Melvin v. John Doe.

In case you haven’t heard of CyberSLAPP lawsuits, they are defamation actions aimed at people who post anonymous messages on the Internet. Essentially, the plaintiff sues the anonymous defamer as “John Doe” and then uses the discovery process to get the identity of the John Doe from his Internet Service Provider.

John Doe is Everywhere – And Nowhere

Whatever the merits of CyberSLAPP suits, they do at least have the virtue of bringing us all a little closer to John Doe. Think about it: if you have ever posted a message on Yahoo, or Motley Fool, or – just hypothetically – the Greedy Associates message boards, you may well have communicated with a real live John Doe. Heck, you might be a John Doe.

If so, you’re in distinguished company. John Doe has his own private club: the “John Does Anonymous Foundation,” which is dedicated to (I am not kidding) “the concept of anonymity.” He has even broken into show business, with the new Fox series, John Doe, which is positively slaying them in the crucial 18-to-34 demographic. So who is this John Doe, and who writes his material?

Deer and Fish Eggs

The first mention of John Doe dates from 14th Century English law, when a fictional plaintiff was required to accomplish one of the most deliciously complex procedures in legal history, the action of ejectment.

Ejectment was a mechanism to get around rigid common law pleading rules that made it nearly impossible for a landowner to prove his title against a person squatting on his land. The landowner would bring a lawsuit in the name of a fictitious tenant, John Doe, who was said to have been ousted by the equally fictitious Richard Roe. Mr. Roe, according to the story, then went on his way and left the property in the hands of the man in actual possession, against whom the lawsuit would proceed. What could be simpler?

Using the name “John” for a fictional character is not surprising – John was a common name in England in the 14th Century, as it is now. Many early English courts named their fictional parties John-a-Nokes (i.e., John, who dwells at the oak) and John-a-Stiles (i.e., John, who dwells at the “stile,” or steps). These were the sorts of names that Englishmen actually used in the Middle Ages. But Doe and Roe? They do not even appear in the lists of early inheritable surnames in England; nor does England have many Doe’s or Roe’s today. A quick glance at the Manhattan phone book reveals only 11 Doe’s. Not exactly a household name.

It appears then, that these were nonsense names, simply referring to fairly common nouns: Doe (a deer, a female deer) and Roe (fish eggs). Except that “roe” could also refer to a species of small deer found in Europe, making it a little closer to “Doe.” Either interpretation of “roe” is possible, since both existed in Middle English, although I favor the latter, since the fish-egg roe was generally spelled roughe or row in the old days.

Roe, Roe, Roe your lawsuit

Somehow, Doe and Roe edged out their competitors to become the preferred fictional parties in the medieval ejectment action. Ejectment turned out to be a pretty good gig for those two – it took the British Parliament five centuries to abolish ejectment (hey, really, no rush guys). By that time, Doe and Roe had entered the general legal lexicon.

The uses of Doe and Roe have changed over the years. Whereas these names were originally applied to parties that did not exist, they now stand for parties who do exist, but whose names are not known, like the anonymous defendants in the CyberSLAPP lawsuits; or parties whose identities are shielded, such as the anonymous plaintiff of Roe v. Wade. At other times, Doe is used to stand for people who may or may not exist, as in those favorite whipping boys of the plaintiffs’ bar: John Does 1-100. And when plaintiffs run out of Doe’s and Roe’s, they sometimes bring in Peter Poe, a decidedly poorer cousin.

John Doe is so prevalent throughout the English-speaking world that, say, a Canadian and an Australian lawyer can happily pass the time by swapping John Doe stories over a glass of lager. But in non-English-speaking countries, they all seem to have dreamed up their own John Doe equivalents. In Germany, when bureaucrats need a generic name, they use Michael Musterman. Italian lawyers refer to unknown persons as Tizio, Caio, and Sempronio – always in that order (there are never more than three unknown persons in Italian law). The common man in Sweden is often referred to as Sven Svenson, whereas in Hong Kong, it’s Chan Siu Ming.

Fertile Octogenarians – and the Women Who Love Them

If John Doe seems like a strange invention, consider some of the law’s other fictional creatures. The field of estate planning, for example, features a delirious cast of make-believe persons, including the Precocious Toddler, the Unborn Widow and the Slothful Executor. The most intriguing of these has to be the Fertile Octogenarian – a hypothetical dirty old man who subscribes to the Rule against Perpetuities (but only for the articles) and who made his first appearance centuries before the invention of Viagra.

In tax law, the fair market value of property is said to be the product of negotiations between two imaginary people: the Willing Buyer and the Willing Seller. By all accounts, these two stalwarts never bargain in bad faith, never conceal information, and never back out of a deal. In short, they represent just the sort of frank, straight-shooting personalities that one so often sees in property transactions.

The most distinguished fictional person is the Reasonable Man, whose various adventures are chronicled in Torts books around the world. Like an uber-boy scout, the Reasonable Man provides a role model for all of us to avoid getting into trouble, negligence-wise.

When it comes to specifics, the Reasonable Man is almost as elusive as John Doe (come to think of it, the two have never been photographed together). The general idea is that he should embody the common-sense standards of the average citizen. He was famously described in a 19th Century British case as “the man on the Clapham omnibus,” Clapham being an ordinary part of London, and an omnibus being something that people with common sense, evidently, used to ride in.

In his book Uncommon Law, A.P. Herbert depicts a fictional English court grappling with the Reasonable Man standard in the imaginary case of Fardell v. Potts. In Herbert’s report, the court finally comes out and says what we all know to be the truth: the Reasonable Man is a dweeb.

“The Reasonable Man is always thinking of others; prudence is his guide and ‘Safety First’ ... is his rule of life. He is one who invariably looks where he is going ... who never mounts a moving omnibus [there’s that word again!], ... and will inform himself of the history and habits of a dog before administering a caress ... who in the way of business looks only for that margin of profit which twelve men such as himself would reckon to be ‘fair’ ...who uses nothing except in moderation and even while he flogs his children is meditating only on the golden mean.”

The problem in Fardell v. Potts was that the defendant, accused of negligently steering a motorboat, was a female and, therefore, not subject to the Reasonable Man standard. Having scoured all available precedents on the law of negligence, the judge reports that “there is no single mention of a reasonable woman.” The only logical conclusion the court can draw from this omission is that “no such being is contemplated by the law.”

But that, of course, was a fictional case.

(This column first appeared in the June 2003 issue of New York Law Journal Magazine)

Tuesday, April 29, 2003

Column: Mostly Martha

Schadenfreude is not a legal term, but perhaps it should be.

It was the word used by Martha Stewart in a recent New Yorker interview to describe the SEC’s investigation into her trading of ImClone stock. Taken from German, Schadenfreude is defined as a malicious pleasure in the misfortune of others.

What could be more legal than that? The law is all about the misfortunes of others, and it is not too much to imagine a cynical lawyer rubbing his hands with glee when he learns of new opportunities to ply his trade. Think of the proverbial “ambulance chaser” as the poster child for Schadenfreude. It was that kind of lawyer that made the poet Carl Sandburg ask: “Why does a hearse horse snicker hauling a lawyer away” – a rare instance of non-human Schadenfreude.

This “malicious pleasure” arises because the law tends to be a zero-sum game – either the plaintiff wins or the defendant does, either the kids inherit the farm or the wicked widow does, either the corporate raider takes over, or management remains in control – meaning that one party’s loss is another party’s, well, Schadenfreude.

At the time of writing, federal authorities are mulling whether to bring charges against Stewart. Because of her preternaturally perfect reputation, Stewart now finds herself at the receiving end of a lot of Schadenfreude, which, as she tells the New Yorker, is not a good thing. And, just for the record, no matter what Conan O’Brien says, Stewart never actually advised people that “a subpoena should be served with a nice appetizer.”

Schadenfreude, by the way, comes from the German Schaden (damage) plus Freude (joy). Following German grammar, it is often capitalized. Oddly enough, there is no equivalent word in English.

The Tipping Point

But I digress. Stewart’s alleged problem is insider trading – a phrase that instantly conjures up images of Gordon Gekko, the slick-haired villain from the 1987 movie Wall Street. But whereas Gekko declared “greed is good,” Stewart tends to say things like “a trellis organizer is a good thing.”

“Insider trading” actually describes two kinds of behavior. In its narrower sense, insider trading refers to trading by a corporation’s insiders, i.e., its directors, officers, and employees in their company’s stock. Such trading can be perfectly legal, provided the insider makes the necessary disclosures to the Securities and Exchange Commission.

The illegal version of insider trading is buying or selling a stock based on inside information, that is, material, nonpublic information about the security. Because that’s a mouthful, people have come to use the term “insider trading” to refer to this kind of illegal behavior.

Insider trading has a rich vocabulary. When you get “inside information” from somebody with a duty not to disclose, that’s called a tip. Most people think that there’s nothing wrong with tipping, as long as you give 15 percent.

As that last sentence reveals, “tip” is a homograph: a word with multiple meanings. It can mean the extreme end (spear tip); shifting the balance (the tipping point); revealing information (tipping one’s hand). Because we also “tip” waiters, a theory developed that the word stands for “to insure promptness.” Nope. Actually, tip comes from Middle English tippen (to touch), which is related to our “tap.” It was a slang term used by English thieves to mean “to pass from one to another,” which is strikingly similar to its use in insider trading.

The person who discloses the information is a tipper. The recipient of a tip, naturally, is a “tippee.” In the current ImClone controversy, Stewart’s former broker, Douglas Faneuil, has pleaded guilty to participating in an insider trading scheme with an “unnamed tippee.” This unnamed tippee, whoever he or she is, joins a distinguished roster of anonymous parties in criminal law, including unnamed defendants, confidential sources and unindicted co-conspirators.

Of course, there are those who would like to give a name to the unnamed tippee: Stewart’s name, to be precise. If Stewart is the tippee – and again, no charges have been brought – she would presumably be what is known as a “remote tippee” because she would have received a second-hand tip, the ultimate source of which was former ImClone C.E.O. Sam Waksal.

Fancee Phrases

The term “tippee” follows a tradition of creating legal neologisms (new words) by adding the suffix “ee” to denote the human object of an action. Somewhere in the hypothetical legal universe, tippees rub shoulders with lessees, licensees, payees, grantees, and the like – all attendees at the same cocktail party.

These words come to us via Law French – the language that dominated English courtrooms for centuries after the Norman Conquest in 1066. In Law French, the past participle was formed by adding “ee” to the ends of words. In French, the verb lesser (to lease) would take the past participle lessee (leased), which eventually came to stand for the person to whom property was leased. Meanwhile, the suffix “or” came to represent the person effecting the action; hence “lessor.”

Just like lessor and lessee, the “or/ee” constructions tend to come conveniently packaged in matched sets: bailor/bailee, mortgagor/mortgagee, employer/employee, and so on. And since the law must constantly respond to new problems, there is a seemingly endless number of new variations on the “ee” theme: asylee; discriminatee; optionee; and, of course, ee cummings.

Tried-and-true frauds

Beyond mere “tipping,” there are a variety of more exotic frauds; for example, the “pump and dump” in which a shareholder tries to “pump up” the price of a stock (by encouraging others to buy), and then “dumps” the stock at its elevated price.

Pump and dump schemes are often operated out of boiler rooms – firms of telemarketers using high pressure tactics. If you’ve ever been told that an investment is a “sure thing” or a “once in a lifetime opportunity,” then you were probably speaking to a boiler room. The general idea is to get you to buy the stock without asking too many questions.

Such tactics are best suited to a bull market. In the halcyon days of “irrational exuberance,” investors were inclined to believe every piece of good news about a stock, whether the source of the information was a broker, analyst, or a guy you just met on the bus. It was easy work for the dumper; bad news for the dumpee.

Now that the bull market is over, fraudsters are having a hard time with the pump and dump – investors are not so optimistic. For our more skeptical era, fraudsters have a different scam, the “short and distort.” That is, traders will take a “short” position (a bet that a stock will decrease in price) and then start spreading false rumors to try to make sure that the stock tanks. For the practitioners of short and distort, the only way to get rich is to make sure that the target company, and all of its shareholders, lose their shirts. Talk about Schadenfreude.

Phrases like “pump and dump” and “short and distort” reflect the law’s longstanding love of rhyming couplets. In the ancient tradition of the Anglo-Saxons, legal maxims were reduced to simple rhymes for ease of memorization. Thus, as linguist Peter Tiersma records, Old English farmers learned about the law by a rhyme: Wo so boleth myn kyn/ewerc is the calf myn, which roughly translates to “no matter who impregnates my cow, the calf is mine” – a phrase that speaks volumes about what the Anglo-Saxons did to pass the time.

To this day, trial lawyers will often come up with memorable rhymes for the jury, Johnnie Cochran’s “if it doesn’t fit, you must acquit” being only most annoying example of this technique. That sort of thing might be your cup of tea, but it’s not myn.

If the Martha Stewart saga continues, then let the above be an unofficial phrasebook for following the proceedings. Enjoy – but not to the point of Schadenfreude.

(This column originally appeared in the April 2003 issue of New York Law Journal Magazine)

Saturday, February 22, 2003

Column: Latin

As every schoolboy knows:

Latin is a language as dead as dead can be;
First it killed the Romans, and now it’s killing me.

But if Latin is so dead, how come we still say Marbury versus Madison? And Brown versus Board of Education? Why use the Latin “versus” when the English “against” would work just as well?

And while we’re at it: why, in 21st Century America, does the court recognize a lawyer pro hac vice, instead of “for this case” and a non-lawyer litigant pro se instead of “for himself?”

The answer, logically enough, is because William the Conqueror won the Battle of Hastings in 1066. Because of that battle, the Normans took over England and imposed Latin as a common language of record keeping, just as it had been in their native France.

1066 And All That

Unlike Old English – a jumble of dialects – Latin was already an ancient and completely standardized language by 1066. By using Latin, King William made sure that his statutes and writs could be understood by every literate subject, from Canterbury to York. As is often the case with people who conquer entire nations, William was a bit of control freak.

Thanks to King William, Latin became the definitive language of English law for several centuries. The English even made up new Latin words to fit their legal concepts. The Anglo-Saxon morder, for example, was Latinized to murdrum; or, as we say today, “murder.”

Even when English lawyers were allowed to write in their own language, they continued to use Latin out of habit. And since lawyers tend to be a wee bit resistant to change, the Latin of King William is still used by lawyers throughout the English-speaking world a mere – oh, 937 years – after the Norman Conquest.

The most remarkable thing about this story is that nobody seems the least bit surprised by the fact that lawyers continue to use Latin. Imagine the consternation if any other profession tried to get away with something like that. What if, say, physicians decided to speak in ancient Greek because that was the language of Hippocrates? Or if accountants still used Roman numerals simply because they worked so well for William the Conqueror? Imagine how cumbersome it would be to fill out your Form MXLIV (1044).

Everyday Latin

And yet, lawyers speak Latin every single day. They seek testimony by subpoena (under penalty), and say that a contract is void ab initio (from the beginning), and draft wills with bequests per stirpes (according to family branch).

Lawyers make motions ex parte and in limine. They construe documents contra proferentem (against person who seeks to use it) and by reference to various canons of construction, including, inter alia (!), expressio unius, exclusio alterius (one meaning excludes the others) and in pari materia (in an analogous case).

I could go on, ad nauseam. In fact, I think I will. In criminal cases, prosecutors must prove actus reus (the criminal act) and mens rea (guilty mind). Fraudsters are said to have scienter (knowledge – same root as “science”). Prisoners can bring a petition for habeas corpus (that you have the body). A superfluous pronouncement by a court is obiter dictum – literally, “stated by the way.”

A defendant caught in flagrante delicto (the act of committing a crime, from the Latin delictum, or “crime”) might point to another person as being in pari delicto (equally at fault), or might simply plead nolo contendere (I don’t contest it). Inmates in state prisons are allowed exercise every day – perhaps in recognition of that old chestnut: mens rea in corpore sano (“a guilty mind in a sound body”).

Lawyers even use Latin to refer to themselves. The professional title “esquire” comes from the Latin scutarius (shield bearer) and is basically the same word as “squire” (as in “Squire, my horse!”). The term “attorney” comes from the Latin torno, meaning literally, to turn on a lathe. Try that next time somebody asks you what you do for a living.

A dead language? Perhaps, but trying to practice law without a basic grasp of Latin is murdrum.

An Amicus in Need is an Amicus Indeed

This is not to deny that there are some distinct advantages to knowing Latin. For starters, it comes in handy when traveling to Latin America. (I’m joking, of course!)

But seriously: a real advantage of using Latin is that it gives every lawyer a link with the ancient origins of the profession. Consider a recent pronouncement of the Ninth Circuit, in which the court denied the motion of the U.S. Senate to “intervene” in a case, but invited the Senate to appear as “amicus curiae.” Here, the terminology of the court is so ancient that Julius Caesar would probably have understood it (well, except for a few English bits).

Caesar would have been familiar with amicus curiae (friend of the court) – in ancient Rome, these were judicially appointed lawyers who were required to instruct the court on difficult points of law. The idea of “intervening,” would have made sense, since that is simply an English rendering of the Latin intervenire (to come in). And of course, Caesar would have known all about the “Senate” (Senatus) – which means literally a “council of elders” (think Strom Thurmond).

But it’s unlikely that Caesar would have agreed with the Ninth Circuit that the Senate makes a good “friend,” since it was a bunch of Roman senators who stabbed him to death. Indeed, if Caesar were around today, he might ask the Ninth Circuit: with amici like these, who needs adversarii?

We can also see a link with the past when lawyers take on asylum cases, which they often do pro bono (short for pro bono publico – for the public good). Asylum comes from the Roman Empire’s rule over the Greek city-states. The Romans adopted the Greek tradition of allowing fugitives to take sanctuary in various religious temples – in Greek, the practice was known as asylon (literally “cannot be seized”), which was Latinized to asylum.

Bad Latin

The quantity of Latin in legal writing is beyond dispute; the quality of the Latin is more doubtful. After centuries of being mangled by people who don’t really speak Latin, Legal Latin is not exactly the language of Virgil and Cicero. Instead, Legal Latin has been described as “barbarous,” “corrupt,” and even as “dog Latin,” a phrase that is not entirely fair to dogs.

Consider the phrase “inchoate,” which comes directly from the Latin incohatus or “incomplete.” The word has been applied to describe a lien that has not yet been perfected, that is, “an inchoate lien.” Lawyers, assuming that inchoate means “not choate,” promptly started referring to fully perfected liens as “choate liens.”

The “choate lien doctrine” may be good law, but it is terrible Latin. That’s because the “in” at the beginning of “inchoate” is not a negative; rather, it’s like the “in” in incoming (incohatus is simply the noun form of the verb incoho (to begin)). And so, referring to a perfected lien as “choate” is a little like referring to a sober person as “toxicated” or, perhaps, “ebriated.”

Latin in the U.S.A.

Latin had a difficult time gaining a foothold in American law. In the 17th Century, the Puritan settlers regarded Latin as a “heathenish” tongue, and emblematic of all that they had left behind in Europe. Latin was, like, sooo 16th Century.

In an effort to purge Latin from everyday life, the courts of colonial Massachusetts did something that nobody in England had, evidently, thought of doing for 600 years: translate the common law summons into English. The effect of this reform on the early Massachusetts bar must have been bracing – witch burnings are said to have doubled.

But then a curious thing happened. In the quest for greater “sophistication,” colonial lawyers and judges began importing more and more elements of English procedure – and with it, more Latin. Legal historian Lawrence Friedman notes that between 1692 and 1700, the writs of scire facias (that you cause him to know) and supersedeas (you shall desist), as well as the action of trespass de bonis asportatis (trespass to goods) all entered the New Hampshire courts as “immigrants” from England.

Within a few decades, the early colonists’ dream of having a simplified, plain-English, system of pleading was gone forever. In its place was a replica of the British system, replete with prima facie cases, in camera reviews and lis pendens.

Oh well, as they say in Latin, sic biscuitis disintegrat – that’s the way the cookie crumbles.

(This column originally appeared in the February 2003 issue of New York Law Journal Magazine).